Sunday, September 02, 2007

Indicting a Sitting President

In modern constitutions, a trace of the unsacrificability of the sovereign's life still survives in the principle according to which the head of state cannot be submitted to an ordinary legal trial. In the American Constitution, for example, impeachment requires a special session of the Senate presided over by the chief justice, which can be convened only for "high crimes and misdemeanors," and whose consequence can never be a legal sentence but only dismissal from office.

(Homo Sacer, p. 103)

Agamben is correct that under the U.S. constitution impeachment of the head of state cannot in itself result in a criminal sentence. However, there is no constitutional provision clearly protecting a sitting president from legal proceedings. Nixon, for example, could have been indicted had Special Prosecutor Leon Jaworski not opted to name him as "unindicted coconspirator" in the Watergate scandal. (See Indicting a Sitting President by Richard M. Mathews.) In the U.S. system it is not unreasonable to expect that executive claims of sovereignty or immunity from prosecution may be put to the test.

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posted by Fido the Yak at 12:43 PM.


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